the offense, etc. As said by Pinney, J., in the case of State vs. Sorenson, 84 Wis. 27, 31:

"Proceedings for the arrest and examination of offenders and commitment for trial, under ch. 195, R. S., are not, technically or properly speaking, proceedings in any court. They are proceedings before certain officers, known to the law as magistrates, for the purpose of carrying out the provisions of this chapter; and these are the judges of the several courts of record, in vacation as well as in term time, court commissioners, and all justices of the peace,' who are authorized to issue process to carry it into execution."

These proceedings then are not proceedings in any court, no more so when held before a justice of the peace than when held before a circuit judge. Neither the circuit judge nor the justice of the peace acts as a court in the conduct of these proceedings. Either acts simply as a magistrate and the power of either is limited by the provisions of chapter 195 under which the proceedings were instituted. As was said in Kerry vs. State, 17 Tex. Court of App. Rep., 178:-

"A justice of the peace is a 'magistrate'

*

when

a justice sits for the purpose of inquiring into a criminal accusation against any person, he sits not as a justice of the peace but as a magistrate, and the court which he then holds is not a justice's but 'an examining court.' When holding such a court, his functions as a magistrate are the same as those of the judges of the county, district, supreme, or court of appeals, when they sit as magistrates to hold an examining trial. The same rules govern each." (p. 181.)

This distinction should be kept in mind. The powers of a justice while sitting as a magistrate are limited to powers conferred upon magistrates generally. His powers while sitting as a magistrate do not include the powers vested in him while sitting as a court any more than it does in the case of a circuit judge, and, as these proceedings are brought under chapter 195, his powers are limited by the provisions of that chapter relating to the powers of magistrates in general.

That the justice is not to try the case is clearly implied in the language of section 4809, which provides that upon the taking of a change of venue

"Said justice or other magistrate shall transmit all the papers in the case to the nearest justice or other magistrate qualified by law to conduct the examination, who shall proceed with the examination in the same manner as though said defendant had first been brought before him."

By the words underscored above, the statute commands him to "proceed with the examination." He is not to proceed to hear, try and determine the case, but he is to proceed with the examination. This means the same examination that might be conducted by any other magistrate to whom the action might have been transferred.

In my opinion a justice of the peace to whom an examination of this kind is transferred acquires no authority or jurisdiction to hear, try and determine the offense and if he does so he is guilty of a usurpation of power and could be prosecuted under sec. 4549, statutes, for exercising powers not conferred upon by him by law, and in addition would be liable to the defendant for false imprisonment, especially in case of conviction.

Intoxicating Liquors-Physician-Veterinarian-The term "practicing physician" used in sec. 1548a does not include a veterinarian and no liquor can be sold on his prescription.

DR. O. H. ELIASON,

State Veterinarian.

January 8, 1915.

In your communication of the 6th inst. you submit the following question:

"Can a pharmacist legally fill a prescription for alcohol and liquor written by a registered veterinarian for veterinary use, under the same regulations as those of a physician, namely, under sec. 1548a, or any other statute which you may find bearing upon this subject?"

Under sec. 1548a it is provided that if a pharmacist cannot secure a permit to sell intoxicating liquors he may, if he is a registered pharmacist, nevertheless sell such liquors for medicinal purposes on the written prescription for each sale of a practicing physician. Our statute provides for the licensing of physicians and we have separate statutes for the licensing of veterinarians. The word "physician" is not broad enough to include within it a veterinarian. I have not been able to find any authorities to the effect that the word "physician" is broad enough to include a veterinarian. In the case of State v. McMinn, 118 N. C. 1259, it was held that a dentist or dental surgeon is not a physician within the meaning of section 1117 of the code of that state, and hence that a prescription for liquor for the tooth ache does not justify one in selling liquor on Sunday on such prescription. The court said:

"The court instructed the jury that a prescription from a dental surgeon was not 'a prescription from a physician' which would protect one who sold intoxicating liquor on Sunday. Code, Sec. 1117. A physician is one authorized to prescribe remedies for and treat diseases; a doctor of medicine.' Webster's Dict. To the same purport are the 'Century' and the 'Standard' dictionaries. A dentist or dental surgeon is one who performs manual or mechanical operations to preserve teeth, to cleanse, extract, insert or repair them. The statutes of this State recognize that dentists are not included in the term 'physician,' the latter being regulated by The Code, Secs. 3121-3134, with the amendatory Acts of 1885, Chs. 117 and 261, and Acts. 1889, Ch. 181, while dentists are governed by The Code, Secs. 3148-3156, and the amendatory Acts of 1887, Ch. 178, and 1891, Ch. 251." (p. 1261.)

The same reasoning will apply to a veterinarian as was applied by the court in the above case to dentists or dental surgeons. We have in this state special statutes authorizing the licensing of veterinarians. We have other sections. of the statutes which authorize the licensing of physicians. When the law makers used the word "physician" in section 1548a it must be presumed that they used the word with the same significance that it is used in other sections of the statutes.

Your question must, therefore, be answered in the negative, as I am of the opinion that the word "physician" as used in section 1548a is not broad enough to include a veterinarian.

Public Officers-County Board-Indigent, etc.-A county board has not the right to purchase 200 acres of land under sec. 1518 for maintaining the county poor.

J. C. DAVIS,

District Attorney,

Hayward, Wis.

January 8, 1915.

In your letter of January 6th you state that the county board of your county proposes to purchase some two hundred acres of land for a poor farm in accordance with sec. 1518, statutes, for the keeping and maintaining of the county poor; that the distinction between county poor and town poor never has been abolished by resolution in your county in accordance with sec. 1519, statutes. The reason, as shown by the resolution, is to make the poor farm nearly self-sustaining. You call my attention to sec. 1523, statutes, and you inquire whether the action of the county board in purchasing said two hundred acres of wild lands could be sustained under the provisions of sec. 1518, statutes.

Said sec. 1518 provides as follows:

"The county board of any county wherein the distinction between town and county poor shall exist may purchase or hire suitable lands and buildings at and upon which the poor supported by the county may be kept and maintained; and the county board may appoint an agent to take charge of such poor and of such lands and buildings, and perform such other duties relating to the care and maintenance of such poor as may be imposed upon him by said board."

Sec. 1523 provides:

"The county board of any county which shall have abolished the distinction between county poor and town poor may, at any annual meeting or special meeting called

for that purpose, levy a tax not exceeding two mills on the dollar in any year for the purpose of purchasing or hiring a suitable farm and dwelling and the necessary stock and implements for the management of the same, to which farm the poor in such county may be removed.'

Said sec. 1518 was first enacted in section 1 of ch. 160, laws of 1860. At that time the provisions of sec. 1523 were already contained in sec. 38, ch. 34, laws of 1858. Had the legislature intended to give the county board of a county wherein the distinction between town and county poor shall exist the same powers as are given to county boards under sec. 1523 in counties which shall have abolished the distinction between town and county poor, it would have been an easy matter to have given the powers enumerated in sec. 1523 to the county boards of every county. Under sec. 1518 the county board to which the section is applicable is authorized to purchase or hire suitable lands and buildings at and upon which the poor supported by the county may be kept and maintained. The county board has not the right to purchase a farm and conduct the same under sec. 1518. They are only authorized to purchase suitable lands and buildings. Two hundred acres is more than the county needs for such purpose, and I believe the county board will exceed its authority if it attempts to purchase so much for such purpose. A suitable amount of land will certainly be much less than two hundred

acres.

You are, therefore, advised that it is my opinion that the county board will exceed its authority if it purchases the two hundred acres in question for the purpose of keeping and maintaining the poor of the county.

Jails

Criminal Law Counties-Workhouses-County Under sec. 697c, statutes, sentences for the offenses therein referred to may be either to the county workhouse or to the county jail, in the discretion of the court. Under sec. 697k, statutes, if such sentence is to the county jail, it is